Yes, refusing a flu shot could get you fired in NJ, attorney says
Three employees of the Lutheran Social Ministries of New Jersey have been ordered to attend a disciplinary meeting Friday morning, because they’ve refused to get a flu shot and they won’t wear surgical masks over their faces while they’re at the office.
Denise Mercurius, Amanda Watson and Megan Duncan have said they expect to get fired at the meeting.
Many Jersey residents think this sounds crazy, but they’re probably not aware that under state law, the same sort of thing could happen to them.
“New Jersey is an employment at-will state, so your employer can fire you for any reason or no reason at all, except if there’s protected activity or you’re in a protected class,” said Kathie Caminiti, an employment attorney with Fisher & Phillips Law Firm in New Providence.
Lew Maltby, president of the National Workrights Institute in Princeton, said this means “your boss can’t fire you because you’re black or female or Jewish, but if your boss wants to fire you because he doesn’t like the tie you’re wearing, it’s perfectly legal.”
Caminiti said generally speaking, employers can mandate that employees have flu shots, but there are important exceptions to the rule — one would be if it’s a unionized workforce with a union contract. Another would be if someone has a disability. For example, if they’re allergic to eggs (as some flu vaccines are made with egg proteins). The third exception is if someone has a bonafide religious objection.
The attorney said some employers have legitimate reasons for wanting their workers to get vaccinated, such as preventing absenteeism, which affects the bottom line. Also, vaccinations can be especially important in situations where healthcare workers are in environments with vulnerable populations, such as nursing homes or hospitals.
Maltby agrees, but he stresses the first thing an employer should do is address concerns workers may have, and that’s not hard to do because the CDC has already put together an employer education kit.
“But firing people because they won’t get a flu shot is too extreme," he said.
The bottom line, Caminiti said, is that “the employer has quite a bit of latitude in determining what the workplace rules might be. Dress code would be an example. If the employer decided that everybody needed to wear a red hat, the employer is in their full rights to do so.”